Montgomery County Council v. Garrott

Hammond, J.,

delivered the opinion of the Court in which Barnes, J., concurs. Concurring opinion at p. 650, infra.

On July 1, 1966, the day of the advanced argument in this case, we filed a per curiam order affirming those parts of the decree of the Circuit Court for Montgomery County which had adjudged and ordered (1) that a resolution of the Montgomery County Council of June 14, 1966 (the resolution), which purported to amend the charter of the County (the Charter) to provide that the voters of each of seven councilmanic districts containing approximately an equal number of residents (established by the resolution) should elect one councilman to represent that district, was invalid and void; (2) that Art. I, § 1, of the Montgomery County Charter (“There shall be a County Council * * * of seven members as follows: One from each of the five * * * [council] districts * * * and two from the County at large” to be “nominated and elected by the qualified voters of the County * * *”) was invalid (under the decisions of the Supreme Court establishing the principle that representative government requires equal representation for equal numbers of people, or the “one man, one vote” principle) because the Council districts had become so grossly disparate in population; (3) that the Montgomery County Council “rearrange and create councilmanic residence districts in accordance with the one-man, one-vote principle * * * and * * * submit the same to the registered voters of the County in the November, 1966 General Election all as provided in Sections 2-4 of the Montgomery County Code”; and (4) retained jurisdiction until “equitable apportionment is accomplished.” We reversed that part of the decree of the Circuit Court requiring that the primary and general elections of 1966 be held “in accordance with the councilmanic residence district requirements of Article I, Section 1 of the Montgomery County Charter as heretofore in full force and effect and in accordance with the finding of this Court that County Council members shall be elected by all the voters of this County,” and substituted our order that the primary and general elections of 1966 be held “so that *639the members of the County Council of Montgomery County shall be nominated and elected at large without residence district requirements and * * * by the voters of Montgomery County as a whole.”

Before spelling out the reasons for our actions, it is appropriate to notice the bases supporting judicial involvement in this normally political matter and the course of that involvement.

There remains little doubt that the one man, one vote principle, so fully articulated in Reynolds v. Sims, 377 U. S. 533, 12 L. Ed. 2d 506, is now applicable to political subdivisions of a state. A number of courts have so held. See, e.g., Bianchi v. Griffing, 238 F. Supp. 997, 1002 (E. D. N. Y. 1965), and cases cited, appeal dismissed, Griffing v. Bianchi, 382 U. S. 15, 15 L. Ed. 2d 11; Ellis v. Mayor and City Council of Baltimore, 234 F. Supp. 945 (D. Md. 1964), aff'd, 352 F. 2d 123. See also Weinstein, The Effect of the Federal Reapportionment Decisions on Counties and Other Forms of Municipal Government, 65 Colum. L. Rev. 21 (1965); Reapportionment, 79 Harv. L. Rev. 1228, 1269-72 (1966).

It was conceded below and in this Court that the requirements of Art. I, § 1, of the Charter of Montgomery County that each of five councilmen must come from the district of his residence, although elected by all the voters of the County, was presently unconstitutional because of the extreme variance in the population of the several districts.* 1

That a requirement of residence by a legislative representative in a district malapportioned as to population is unconsti*640tutional, even though election be by all the voters of the political subdivision of which the district is a part, was foreshadowed by Fortson v. Dorsey, 379 U. S. 433, 13 L. Ed. 2d 401, which approved an apportionment in Georgia of fifty-four senatorial seats among fifty-four senatorial districts, thirty-three made up of from one to eight counties and twenty-one allotted in groups of from two to seven among the seven most populous counties, the election in such cases being on a county-wide basis, on the premise that the districts were equal in population. In Davis v. Dusch, 361 F. 2d 495, the Court of Appeals for the Fourth Circuit, speaking through Judge Bryan, upset a proposed apportionment plan for the City of Virginia Beach. The plan provided for eleven councilmen, all to be elected by the voters of the entire city. One of seven members was allotted to one of seven boroughs, of which he must be a resident. The remaining four members could reside anywhere within the corporate limits. The proposed boroughs ranged in population from 733 people to 29,048 people. The Court held that despite the provision that all councilmen were to be elected by the vote of all the voters of the city:

“full compliance with the 14th Amendment’s Equal Protection Clause * * * is still wanting. The principle of one-person-one-vote extends also to the level of representation, and exacts approximately equal representation of the people * * *. But that is not achieved in the 7-4 plan; the imbalance in representation in the council is obvious. * * * ‘It is the distribution of * * * [members] rather than the method of distributing * * * [them] that must satisfy the demands of the Equal Protection Clause.’ Burns v. Richardson, [348 U. S. 73, 16 L. Ed. 2d 376] * *

On June 3, 1966, a bill for declaratory and injunctive relief was filed in the Circuit Court for Montgomery County by one Zelenka against the Board of Supervisors of Election seeking (a) to have at large elections for council members declared invalid, and (b) revision of councilmanic districts to coincide with the legislative districts created by Ch. 531 of the Laws of 1966. On June 14 the Montgomery County Committee for Fair *641Representation and five residents of the County intervened in the Zelenka suit and filed pleadings which sought to dismiss Zelenka’s bill and to have at large elections declared mandatory.

On the same day, June 14, the County Council, spurred on by the suits and by the decision in Davis v. Dusch, supra, sought to amend the Charter by passing the resolution which purported to rearrange the councilmanic districts to make them about equal population-wise and, in the process, to provide that the resident member from each district should be elected by the voters of that district.

On June 15 two candidates for the Council filed a bill for declaratory relief in which they alleged the passage of the resolution and that they had been advised by the Supervisors of Election that those officials intended to conduct both the primary and general elections in accordance with the resolution and that the resolution is invalid under the Constitution and laws of Maryland and the Charter of Montgomery County, and prayed for a decree (a) declaring the resolution to be illegal and void, and (b) enjoining the supervisors from conducting an election under the resolution. The Circuit Court heard the cases together and issued its decree, referred to in the beginning of this opinion and now under review, applicable to both cases.

We pass to the reasons which prompted us to agree with the Circuit Court that the resolution must be rejected as invalid and to disagree with its view that the primary and general elections should be held under the invalid five-two plan provided for in Art. I, § 1, of the Charter.

Section 3 of Art. II of the Charter vests in the County Council “the law-making power [of the County] * * *, including all law-making powers heretofore exercised by the General Assembly of Maryland but transferred to the People of the County by virtue of the adoption of this Charter * * It also provides that “for the enactment of legislation the County Council shall sit in Legislative Session during May of each year.” Section 4 b of Art. II gives the Council power to enact laws necessary to provide for the nomination and election of members *642of the County Council “in such manner as may be legally permitted under the law of Maryland.”

Section 4 of Art. Ill (“The Executive Branch”) provides that “to guard against hasty legislation and afford the people of the County adequate opportunity to express their will,” no bill is to become law “until the 15th day of August following the close of the Legislative Session” and that any person shall have the right to appear before the Council and state why the bill should not become law. The section goes on: “* * * the County Council * * * shall have the right as the chief executive authority of the County by the affirmative vote of four members to veto a bill and if vetoed the bill shall not become law. If not vetoed, a bill shall become law on said 15th day of August * * * unless the bill is subjected to a valid referendum under this Charter.”

Section 5 b of Art. VIII provides that the Charter may be amended in the manner provided in § 5 of Art. XI-A of the Constitution of Maryland. One manner so provided is a resolution of the Council submitting the proposed change to the voters “at the next general or congressional election occurring after the passage of said resolution * * *.” Subsection c of § 5 of Art. VIII of the Charter provides: “The County Council in legislative session shall have power to enact local laws to facilitate the repeal or amendment of this Charter by vote of the electors of the county.” (Emphasis supplied.)

Whether the Council really thought it, like the Legislature of the State, generally had plenary powers, except as limited by constitutional provisions (cf. Md. Committee v. Tawes, 228 Md. 412, 439), or whether it really thought that because the existing councilmanic districts were constitutionally intolerable, the unconstitutionality bestowed inherent powers upon it and it did not matter how the imbalance was cured, or whether it combined the two thoughts, we do not know. It is clear, however, that the Council is a political creature of delegated powers, that it can effectively act only within the limits of the powers delegated to it by the Constitution and the Legislature, Ames v. Supervisors of Elections, 195 Md. 543, 551, and that it did not respect the limits and bounds imposed on it when it failed to act in legislative session and evaded both the Au*643gust 15th effective-date provision and the submission of the proposed changes to the voters of the County at the next general election.

If it be assumed, without deciding, that some of these limits and bounds need not, under the circumstances, have been strictly respected, it is further apparent that it was substantively beyond the power of the Council to provide for the election of councilmen by other than a county-wide vote and that, therefore, it did not provide for the nomination and election of members of the County Council “in such manner as may be legally permitted under the law of Maryland” under § 4 b of Art. II of the Charter. Section 1 of Art. VII of the Constitution of Maryland provides: “County Commissioners shall be elected on general ticket of each county by the qualified voters of the several counties of the State * * The phrase “on general ticket” if its meaning were not made apparent by the following requirement of the Constitution that the election be by the qualified voters of the county is clearly defined by its historical background and its commonly agreed-upon interpretation. The Constitution of Maryland of 1851 provided its own definition in § 8 of Art. VII that the then newly designated county commissioners “shall be elected by general ticket, and not by districts, by the voters of the several counties * * Judge Niles in Maryland Constitutional Law 304 says that the reason for providing for the election of county commissioners upon a “general ticket” is to prevent “any apportionment between smaller localities, such as assigning one or more to certain election districts.”

Attorney General O’Conor in 20 Op. A. G. 357, 360 (as did Attorney General Finan in an opinion dated February 28, 1966), concluded that election by general ticket historically has meant election by all the qualified voters of the county. Volume IV, Pt. II of The Oxford Dictionary: A New English Dictionary on Historical Principles—new in 1901, the year of its publication;—has this definition: “General Ticket (U. S.) : the system by which the whole list of candidates for the representation, e.g. of a state or city, is voted upon by the undivided body of electors * * The Supreme Court of Michigan found the same meaning in the phrase “general ticket” in Maynard v. Board of District Canvassers, 47 N. W. 756, 760.

*644Section 3 of Art. XI-A of the Constitution, “Local Legislation [for chartered counties] ” provides:

“Every charter [authorized by this Article]] * * * shall provide for an elective legislative body in which shall be vested the law-making power of said City or County. * * * The chief executive officer, if any such charter shall provide for the election of such executive officer, or the presiding officer of said legislative body, if such charter shall not provide for the election of a chief executive officer, shall be known * * * in any County as the President of the County Council of the County, and all references in the Constitution and laws of this State * * * to the County Commissioners of the Counties, shall be constructed [construed] to refer to * * * the President and County Council herein provided for whenever such construction would be reasonable.” 2

The Express Powers Act, Code (1957), Art. 25A (passed in 1918 by the Legislature pursuant to the direction of § 2 of Art. XI-A of the Constitution that at its first session after the adoption of Art. XI-A it provide “a grant of express powers for such County or Counties as may thereafter form a charter under the provisions of this Article”—a grant which, under § 4 of Art. XI-A, cannot be changed by public local law), provides in § 2 that:

“The members of the county council of any county adopting a charter under said Article XIA shall be elected on the general ticket by the qualified voters of such county as the members of the General Assembly are or may be elected under the provisions of *645the law of the State of Maryland, and members of the county council shall be likewise nominated as members of the General Assembly are or may be nominated under provisions of the law of the State of Maryland,”

and § 3 permits a charter to require that a specified number of councilmen must reside in specified districts in the county, with the proviso that:

“nothing herein contained shall be construed to affect the requirement of § 2 hereof that the members of the county council shall be nominated as members of the General Assembly are or may be nominated under the provisions of the law of the State of Maryland, and that such members shall likewise be elected on the general ticket by the qualified voters of such county as members of the General Assembly are or may be elected under the provisions of the law of the State of Maryland.”

We find it clear that the directions of § 1 of Art. VII of the Constitution that County Commissioners must be elected by general ticket, that is, by all the qualified voters of the county, is made applicable to councilmen of Montgomery County by virtue of § 3 of Art. XI-A of the Constitution and that the provisions of § 1 of Art. I of the Charter that councilmen “shall be nominated and elected by the qualified voters of the County” was a necessary reflection of this transplanted requirement.

The appellants begged us to take the view that the words of § 2 of Art. 25A (that the councilmen are to be nominated and elected as the members of the General Assembly are) and the words of the proviso in § 3 (that nothing in the statutes’ provision for a charter to impose residence districts for councilmen is to be construed “to affect the requirement of § 2 hereof”) make mandatory election of councilmen by districts. They argue that inasmuch as the reapportionment of the State Legislature under Ch. 2 of the Special Session of 1965 and Ch. 531 of the Laws of 1966 is accomplished by the election of delegates and senators resident in a legislative district by the *646voters of the district, and § 2 and § 3 of Art. 25A direct that councilmen shall be nominated and elected “as the members of the General Assembly are,” the inevitable result must be that councilmen now are to be elected from districts in which they respectively live. There are several compelling reasons why this argument cannot prevail. Section 1 of Art. VII of the Constitution, as we read it, flatly and compellingly says that county councilmen shall be elected by the qualified voters of the entire County and so forbids election by districts. At the times § 2 and the proviso in § 3 of Art. 25A became law, members of the Legislature were elected county-wide so that the constitutional requirement for county-wide voting for councilmen and the statutory requirement of equivalence between election of councilmen and that of members of the Legislature were entirely harmonious. Now that the Constitution still requires county-wide voting for councilmen but the Legislature is to be elected district-wide, §§ 2 and 3 of Art. 25A should be read, if possible, so as to give effect to their words without putting them in conflict with the constitutional provision. As the Circuit Court pointed out, the equating of the nomination and election of councilmen with the nomination and election of members of the Legislature could be related only to the procedural and mechanical aspects of those processes such as dates of filing, filing fees, primary requirements, party designations, and dates of election. So read, there would be no conflict with § 1 of Art. VII of the Constitution. The legislatures that passed !§ 2 and the proviso of § 3 of Art. 25A must be presumed to have known that § 1 of Art. VII of the Constitution demanded county-wide voting for council members, and that they could not change this demand by statute. Therefore, they must be -deemed to have intended by passing §§ 2 and 3 of Art. 25A to. have referred to matters they could control by statute, such as the mechanical and procedural aspects of nomination and election of councilmen. This view is strengthened by reflection that some legislative districts now are composed of several counties and by consideration of the whole of § 3, which expressly permits a charter to impose residence requirements, in the election of council members and at the same time says this shall not destroy the sameness of the nomination and election of *647councilmen and members of the Legislature. When § 3, as it now reads, was enacted in 1955 (Ch. 556), a candidate for the Legislature was not required to live in a district. Clearly, the Legislature did not contemplate that the identity of nominative and elective requirements extended to all aspects of those matters. We are of the firm opinion that the County Council cannot bring about a charter requirement that election of council members be by the voters of a district as long as § 1 of Art. VII and § 3 of Art. XI-A of the Constitution stand as they now read.

We think the Circuit Court was not justified in allowing the primary and general elections of 1966 to be conducted in accordance with the invalid residence districts established by § 1 of Art. I of the Charter. The Supreme Court said in Reynolds v. Sims, 377 U. S. 533, 585, 12 L. Ed. 2d 506, 541:

“It is enough to say now that, once a State’s legislative apportionment scheme has been found to be unconstitutional, it would be the unusual case in which a court would be justified in not taking appropriate action to insure that no further elections are conducted under the invalid plan. * * * In awarding or withholding immediate effective relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws, and should act and rely upon general equitable principles.”

In Swann v. Adams, 383 U. S. 210, 15 L. Ed. 2d 707, the Supreme Court put this philosophy into action, reversing the District Court which had permitted an admittedly unconstitutional apportionment plan to remain in effect on an interim basis so that the 1966 elections would be conducted under it. The Supreme Court found no warrant for perpetuating an unconstitutional apportionment for one more election and remanded the case so that a valid plan would be made effective for the 1966 election. There would seem to be no procedural or mechanical difficulties in holding the 1966 elections in Montgomery County on an at large basis and no substantive reason why an at large election would not gratify the one-man, one-vote principle established by the Supreme Court.

*648At large voting has hitherto been approved by the Supreme Court in necessary circumstances. See Smiley v. Holm, 285 U. S. 355, 76 L. Ed. 795; Koenig v. Flynn, 285 U. S. 375, 76 L. Ed. 805; Carroll v. Becker, 285 U. S. 380, 76 L. Ed. 807. In Scott v. Germano, 381 U. S. 407, 14 L. Ed. 2d 477 (1965), the Court remanded the Illinois reapportionment case to the District Court with directions to retain jurisdiction and if a valid plan were not timely effected to enter an order for “a valid reapportionment plan for the State Senate or an order directing that its members be elected at large pending a valid reapportionment by the State itself.” (Emphasis supplied.) Lower courts have agreed that an at large election is valid. Germano v. Kerner, 241 F. Supp. 715 (N.D.Ill.), order vacated on other grounds in Scott v. Germano, 381 U. S. 407; Reed v. Mann, 237 F. Supp. 22 (N.D.Ga.); Moore v. Moore, 229 F. Supp. 435 (S.D.Ala.); Swanson v. State of Illinois, 226 F. Supp. 699 (N.D.Ill.); Brown v. Saunders (Va.), 166 S. E. 105. See also Davis v. Dusch, supra, and McKay, Political Thickets and Crazy Quilts: Reapportionment and Equal Protection, 61 Mich. L. Rev. 645, 701-05.

The appellants say that 53% of the population of Montgomery County is concentrated in 14% of the land area (500 square miles) of Montgomery County (apparently the Wheaton, Silver Spring and Colesville areas) and draw the conclusion entirely without support in the record that the practical effect of this crowding “is the total disenfranchisement of approximately 200,000 residents, and the absolute denial to them of any voice in their local government.” This conclusion would seem to overlook the fact that every voter’s vote would have a weight equal to that of every other voter in the at large selection of each councilman, but an even shorter answer is that there was no proof or showing that county-wide voting, without residence requirement, would produce an unconstitutional result, and the Supreme Court has said and held that there must be a demonstration in the record before a facially constitutional plan of representation will be upset as unconstitutional in practice and effect. In Portson the Court gave its blessing, as facially valid, to a plan for county-wide voting for state senators in counties having multi-residence districts and in answer to the bald, un*649supported assertion that the county-wide election method had been resorted to by Georgia in order to minimize the strength of racial and political minorities in the populous urban counties, said at page 439 of 379 U.S.:

“It might well be that, designedly or otherwise, a multi-member constituency apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population. When this has been demonstrated, it will be time enough to consider whether the system still passes constitutional muster. This question, however, is not presented by the record before us.”

Similarly, the questions posed by the appellants as to the effect of at large voting is not presented by the record in this case.

The Supreme Court has made other similar rulings. In Burnette v. Davis, 382 U. S. 42, 15 L. Ed. 2d 35, the Court affirmed per curiam a three-judge District Court decision—Mann v. Davis, 245 F. Supp. 241 (E. D. Va.)—that a multi-member district combining Richmond and Henrico County in Virginia was constitutional despite claims of discrimination based on figures which showed that Negroes constituted 42% of the city population but only 29% of the combined district population. Judge Bryan for the Court below pointed out that councilmen for the local government of Richmond had been traditionally elected at large “without question by either race,” and said (p. 245 of 245 F. Supp.):

“The concept of 'one person, one vote’, we understand, neither connotes nor envisages representation according to color. Certainly it does not demand an alignment of districts to assure success at the polls of any race.”

The labels “political parties,” “factions,” “conservatives” or “liberals” could be validly substituted for “race” in the quotation. See also Wright v. Rockefeller, 376 U. S. 52, 11 L. Ed. 2d 512, and Burns v. Richardson, 384 U. S. 73, 88-89, 16 L. Ed. 2d 376, 389, where the Court, in approving an apportion-*650me nt plan against claims that the legislature in establishing the districts failed to take into account “community of interests, community of problems, socio-economic status, [and] political and racial factors,” said:

“But the demonstration that a particular multi-member scheme effects an invidious result must appear from evidence in the record. * * * That demonstration was not made here. * * * Speculations do not supply evidence that the multi-member districting was designed to have or had the invidious effect necessary to a judgment of the unconstitutionality of the districting.”

The rationale of this language is, in our view, equally applicable to the fears of the appellants as to the effect of an election at large without residence requirements in Montgomery County.

. The districts were established by the Charter in 1948. The growth and development of Montgomery County since then has resulted in a distribution of population in the five residency districts (according to the 1960 census figures) as follows:

Council District Population % Distribution
1 11,941 3
3 13,967 4
3 43,343 13
4 87,444 36
5 184,334 54
100% TOTAL 340,938

. Section 4 b of Art. IX of the Charter provides: “In accordance with the provisions of Article XIA of the Maryland Constitution at such time as the elected members of the first County Council take office, all references in the constitution and laws of Maryland to the county commissioners shall be construed in the case of Montgomery County to refer to the County Council which shall at such time succeed to the powers of the county commissioners for Montgomery County.”